News

China

Email Regulation

In an effort to protect its more than 110 million Internet users from unsolicited email, China has issued new regulations governing spam.  Internet use is growing at a greater rate in China then anywhere else in the world, and an estimated 60% of emails currently sent in China are spam.  The new regulations mandate security measures to be taken by email providers including the registration of users’ IP addresses and a prohibition on the release of users’ personal information to third parties.  Spam is defined as email containing false information or rumors, erotic content, fraud, viruses, or unsolicited marketing materials.  Those caught sending spam may be punished with fines of up to RMB30,000 (US$3,750), and face revocation of their Internet licenses.  Internet Service Providers must maintain records for 60 days of all email sent and received, must report email with prohibited content, and must provide such records to authorities upon demand.  Since violation by an Internet Service Provider could result in loss of their license, they should have an interest in ensuring that their customers do not issue spam email.  However, the commitment to enforcement is not yet clear.

Constitutional Law Challenges

Further to a national debate about the rights of courts to rule on the constitutionality of statutes, the National People’s Congress established a new department to handle such review.  The new department, called the Office for File Keeping and Examination of Regulations, is empowered to handle suggestions from government agencies, private enterprises, or even individuals, who point out that a law or regulation is in violation of China’s constitution or national law.  The newly specified procedure clearly maintains that the legislature alone is empowered to invalidate laws and regulations, and reminds everyone that such power does not belong to China’s courts.

Death Penalty Appeals

Following the exposure by the Chinese media of several miscarriages of justice in death penalty cases, the Supreme People’s Court has issued a notice requiring that local high courts sit in open session when hearing certain death penalty appeals from January 1, 2006 and in the second half of 2006, all death penalty appeals should be tried in open courts.  Existing law already provides that many death penalty appeals should be heard in open court, but courts have frequently found reasons to maintain a closed court.  This notice continues the Supreme People’s Court’s reform of the death penalty trials, which began with the announcement in the fall of 2005 that the Court would assume the responsibility for reviewing death sentences.

Public Security Violations

A new law has been put into effect regarding the definition and punishment of Public Security Administration violations.  The new law increases the number of punishable violations under the Public Security Administration Law.  These generally fall into the following categories: disruption of public order, disruption of public security, infringement of certain personal and property rights, and interference with social management.  The new Law also increases the severity of penalties.  The penalties range from warnings, fines, to detention for up to fifteen days and revocation of any relevant licenses.  The new Law also more precisely establishes the correlation between violations and penalties, and when exceptions should be made. 

Examples of disturbing the public order are disseminating rumors, making false reports or threats of danger, placing fake explosive, poisonous, radioactive, or infectious materials, damaging property, organizing evil cults or superstitious activities, hacking into computer systems to add or delete files, or distributing a computer virus, etc.  Examples of disturbing the public security include mailing explosives or other dangerous materials etc.; unlawfully holding weapons; damaging oil or gas pipelines, or telecommunications facilities; behavior that may threaten the safety of railway or road traffic, etc.

Behavior that infringes personal or property rights includes organizing minors or the disabled to conduct cruel displays; using threats or violence to coerce others to work, restricting personal freedom; infringing on others’ privacy.  Behavior that impairs social management includes refusal to comply with government orders; committing fraud by impersonating government personnel; counterfeiting tickets, passes, license plates; damaging cultural relics; conducting pornographic activities; gambling; etc.

Domain Name Disputes

In an attempt to balance the interests of trademark owners against the interests of the owners of disputed domain names, the China Internet Network Information Center, the supervising authority for .cn domain names, has revised its dispute resolution procedure, which took effect on March 17, 2006.

The new procedures contain the following refinements and clarifications:

1.      A dispute will not be accepted if it involves a domain name that has been registered for two years.

2.      “Selling domain names” is defined as malicious only where the purpose of registering or accepting a domain name is to sell, rent, or otherwise assign it to the complainant which already owns a civil right to the name, or to the party’s competitor.

3.      A respondent in a domain name dispute can assert a legal right in the domain name if 1) it has used the domain name or a corresponding name when providing products or services; or 2) the domain name has acquired a degree of fame; or 3) it used the domain name in a reasonable manner or for a non-business purpose, without any intention to cause commercial confusion to consumers.

Patent Law Reform

As part of the national strategy to reform intellectual property rights, the National People’s Congress and the State Council are undertaking a third revision of the Patent Law, to be completed by next year. Issues to be addressed include the simplification of patent application and examination procedures, improvements in patent protection, jurisdiction over intellectual property lawsuits, and the protection of China’s biological and genetic resources.  The changes are motivated in part by China’s entrance into the WTO, and the State Intellectual Property Office will also consider to what extent China should adopt internationally recognized standards in granting patents.